1. Appellant Mst. Kulsoom Bibi had sought the ejectment of respondent Mian Syed Hussain on two grounds. First, that her husband had a sweet-meat shop and wanted to expand it and the disputed shop being adjacent to it was the most suitable for the purpose. Second, that the respondent had defaulted in the payment of rent from September, 1983 to January, 1984 and in the payment of electric charges from November, 1982 to January, 1984. Both the grounds were contested by the respondent and vide impugned order dated 27-8-1987 learned Rent Controller dismissed the ejectment application hence this appeal.
2. As for the default in the payment of rent, the case of the respondent is that no receipts were ever issued and in the beginning he was paying advance rent for full one year whose payment was endorsed on the back of the agreement but afterwards these endorsements were not made and no rent receipt was issued by the landlady. The original rent agreement is on record as Ex. 4-C. It is dated 9-1--1973. There is an endorsement on its back that rent for the period from 9-1-1973 to 9-12- 1973 was paid on 9-1-1973: Again there is second endorsement showing that on 9-12-1973 advance rent for the period from 9-12-1973 to 9-12-1974 was paid. There is yet a third endorsement which shows that on 9-12-1974 advance rent for the period from 9-12-1974 to 9-12-1975 had been paid.
3. The rent agreement was produced by the landlady herself and there could be no dispute about the payment of this rent. This shows that the respondent, as per general practice between the parties, was paying advance rent for full one year and he did so for at least three years. There was no space left on the back of this rent agreement and it is not clear whether any further such endorsements had been made by the landlady. The dispute on the payment of rent arose much afterwards and the alleged default is said to have occurred w.e.f. September, 1983. The case of the respondent is that he had paid rent for the period from December, 1983 to February, 1984 on 8-12- 1983 and had also paid the electricity charges for the same period on the same date but as usual no receipt had been issued by the landlady. In view of the fact that right from the beginning no receipts were being issued by the landlady, the fact which was not denied by the attorney of the landlady, in his affidavit, and in view of the fact that the default is alleged only since September, 1983, whereas the tenancy is in existence since 1973, it appears that there is force in the contention of the respondent that the rent of the disputed period was paid by him and as per practice no receipts had been given to him. The initial burden to prove the payment of rent is no doubt upon the tenant but in view of the long practice prevailing between the parties whereby rent was being paid without obtaining any receipts and, in fact, for as many as three years it was paid in advance for full one year each time, such onus has been sufficiently discharged by the tenant/respondent. It is rather unreasonable to believe that a tenant who had been regularly paying rent for the last 10 years and, in fact, had at least on three occasions had paid Advance rent for one year, would commit default for two months. The appellant herself .Is at fault in giving birth to the practice of receiving rent without issuing receipts and should not be allowed to encase upon such practice. I agree with the finding of the learned Rent Controller on the issue of default. I have go a through 1988 CLC 1055, 1988 CLC 973 and 1986 CLC 1747. In my view the authorities do not advance the case of the appellant since the land-lady was admittedly not issuing the receipts right from the beginning. The version of the respondent that he paid the rent for the disputed period appears to be reasonable. In this respect I rely on PLD 1985 Kar. 741 and 1986 CLC 1119.
4. As for the personal requirement of the husband of the landlady, the husband of the landlady who is also her general attorney filed his affidavit in evidence and in para. 5 thereof he has stated that with the passage of time his sweet-meat business had grown and his shop measuring 120 sq. Ft.
5. Was no more sufficient for his needs because now he had to cater for customers who wanted to eat the sweets in the shop and for this purpose he wanted to place chairs and benches and therefore desired further accommodation. He further stated that he wanted to introduce morning breakfast of `Halwa puri' and this again required more space. According to him the disputed shop measuring 40 sq. Ft. Was most suitable for his needs. The respondent in his affidavit stated that apart from the fact that appellant's husband did not require any more accommodation for his shop, he was in possession of a space of 5 ft by 10 feet which was adjacent to hi:, shop and was still not being used for the alleged purpose of expanding his business. The appellant's husband admitted that fact and stated that this space was under the stairs and was not suitable for his purpose. The appellant/landlady also produced copies of Income-tax Returns to show that the business was expanding and therefore more space was required. These Income-tax Return.,, however, do not show that the income of appellant's husband was increasing. Ex. 4-C is copy of the Income-tax Return for the year 1983-84 and it shows that an amount of Rs. 1,824 had been paid by way of income tax On the contrary, income-tax paid for the period 1981-82 is to the tune of Rs.1,832.
6. In other words the husband of the appellant had paid more income-tax during 1981-82 then he did in 1983-84. Return of Super Tax for the year 1983-84 (Ex. 4-D) shows that super tax amounting to Rs.
7. 2,480 had been paid for the year 1983-84 but the appellant has not filed super tax return of previous year so that any comparison could be made. In any case, the income-tax returns for the year 1983-84 (Ex. 4-C) and the year 1981-82 (Ex. No not given) clearly show that the appellants husband had paid more income-tax in 1981-82 than in the year 1983-84. These Income-tax Returns rather go against the appellant, It is no doubt the choice of the landlord to select any of his properties for his use or for his additional use (as the case is in this appeal) but mere assertion of the landlord cannot be believed and acted upon. In fact returns do not support the appellant and this only leaves the appellant with the desire of her husband to expand his business. Even for this purpose, adjacent space is-available but the appellant's husband was not willing to use it on the ground that it was under the stairs. It may be under the stairs all right, but even so, it is 5` x 10` and.
8. Thus more in area than the area of the disputed shop. Coupled with the fact that this space is adjacent to the present shop of the appellant and still he is not utilising the same, leads me to believe that the ground of personal requirement was not genuine. The learned counsel for the appellant had relied upon 1988 CLC 1055 on the point of personal bona fide requirement of the landlord and it was held in this authority that when the assertion of the landlord appeared to be straightforward, natural, reliable and stood unshaken in spite of long cross-examination then plea of such bona fide requirement stood sufficiently proved: As observed above, the assertion of the husband of the appellant lacked all these qualifications and therefore it cannot be relied upon.
9. 1988 CLC 793 and PLD 1988 Kar. 450 also do not advance the case of the appellant. It is in evidence that the appellant owned another building and in 1983 six shops were vacant in it. PT-1 in respect of this building is available in the R&P at page 95 (Ex.4-F). It is also an adjacent building and endorsement on its back shows that six shops were lying vacant in it. Under these circumstances at is not possible to believe the assertion of the appellant that her husband required the disputed shop for his bona fide use and occupation. I was in this respect referred to 1986 CLC 696 in which it has been held that when the landlord is found to have other sufficient accommodation in his possession, his claim of personal requirements cannot be said to be bona fide. There is no doubt that there is some misreading of the evidence on the part of learned Rent Controller as would appear from page II of the impugned judgment wherein he has observed duct "another aspect of the case is that the applicant had admitted in his cross-examination that he has got no male child and his daughters are married and are residing with their husbands .. . . . . . . . .", which would show that the learned Rent controller treated the disputed property as residential but in spite of that t am satisfied that the finding of the learned Rent Controller on the issue; of personal requirement is in accordance with the evidence on record and there are no grounds to set it aside.
10. There is yet another aspect of the case. The landlady had sought the disputed shop for the expansion of the business of her husband but the husband had died shortly after the decision of the case in the Court of the Rent Controller. Since the applicant has no male child, as per admission of her late husband in his cross-examination, there, is no question that the requirements of the said husband would still subsist. The landlady cannot say that the business would be taken over by her sons since she has no sons and the daughters are all married and are living wrath their husbands. In this respect I was referred to PLD 1981 Kar. 273 in which it is held that the ground of personal requirement cannot be availed of by the sons and daughters. In this reported case the landlady had sought the ejectment on the ground of her own personal requirement and she had died and it was held that her sons and daughters could not avail the ground of personal requirement of their mother. On the same, principle, the ground of personal requirement abated with the death of the husband of the appellant and is no more available.
11. For the above-noted reasons I find no force in this appeal and, as a result, the impugned order is upheld and the appeal stands dismissed with no p order as to costs.
12. M.Y.H./K-141/K